Metropolitan News-Enterprise


Monday, May 2, 2011


Page 3


Court of Appeal Rejects ‘Rescuer’ Suit Over Off-Road Vehicle Event


By a MetNews Staff Writer


A man who was injured assisting a fellow rider whose off-road vehicle became stuck in train tracks cannot sue the sponsors of the event in which they were participating, the Fourth District Court of Appeal ruled Friday.

Justice James McIntyre of Div. One said Aaron Tucker has no claim under the “rescue” doctrine because the defendants had no duty to protect him from his injuries,  which occurred when a train hit the other rider’s vehicle and propelled it into Tucker after both men were clear of the tracks.

The event was a “Poker Run,” sponsored by an Imperial County radio station and Jeanne Boardman, owner of a local business, in the Imperial Sand Dunes Recreational Area in Glamis in 2006. Tucker was one of a number of individuals who paid a fee to participate in the event, which featured prizes based on poker hands that participants formed by getting playing cards punched at stations along the route.

Some non-paying participants also road along, one of whom was David Kendle. Tucker alleged in his complaint that he saw Kendle get stuck, saw a train approaching, and went to help Kendle. When Kendle got off his vehicle, Tucker said, they tried to dislodge it from the tracks.

When he heard the train’s whistle, however, Tucker said, he jumped to get out of the way and knocked Kendle out of the way as well. Neither was hit by the train, but Tucker was unable to avoid being hit by the flying vehicle after the train hit it.

Tucker and his wife sued CBS Radio Stations, Inc., owner of the sponsoring station, and Boardman,. Imperial Superior Court Judge Jeffrey Jones, however, sustained demurrers, saying the defendants owed no duty of care to either Tucker or Kendle.

McIntyre said the plaintiff pled sufficient facts to allege that he was a rescuer, under the rule that generally permits a rescuer to recover for injuries sustained while attempting to rescue a party placed in danger by the defendant’s conduct. But the demurrers were properly sustained, the justice said, because the plaintiffs could not, despite a number of attempts to amend the complaint, show a breach of duty owed to Tucker directly, or of a breach of a owed to Kendle.

The defendants, the justice said, could not have reasonably foreseen that a nonpaying participant in the event would cross over the railroad tracks. And even if that was foreseeable, McIntyre explained, there would still have been no duty owed to Tucker because the causal connection between the breach of an alleged duty to warn participants not to cross the tracks and the injury was remote.

The injuries, McIntyre said, arose from “an extended sequence of multiple occurrences not reasonably foreseeable generally and, even less so, in the particular circumstances of this case,” including the decision the two men made to try to free the vehicle with the train approaching, even though they were able to get clear of the tracks and the train themselves.

Nor, the jurist added, should a duty to warn be assigned to parties with as remote a connection to the cause of the harm as the sponsors.

“Here, CBS and Boardman did not own the railroad tracks or the land upon which the tracks sit,” he explained. “Rather, the railroad tracks were owned by Union Pacific.  Accordingly, neither CBS nor Boardman had the ability to preclude members of the public from traversing miles of railroad tracks, and imposing such a requirement would be unduly burdensome.”

The case is Tucker v. CBS Radio Stations, Inc., 11 S.O.S. 2209.


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